Tribute to Howard Nations-The Spielberg Method

Howard Nations is a successful personal injury lawyer practicing in Houston Texas. His website has a tab for his publications which include “Overcoming Jury Bias.” I have read all of Howard Nations publications, and find them a great resource. This post pays tribute to Mr. Nations by discussing what he terms The Spielberg Method.

Problem Presented. Often plaintiff personal injury trial lawyers are faced with overcoming jury bias about frivolous lawsuits. When faced with a jury panel where members express the belief many lawsuits are without merit Howard Nations teaches the lawyer can: 1) “Tame the Stallion” which means challenge the belief; 2) “Ride the Wild Pony” which means agree with the belief; or 3) Employ “The Spielberg Method” which means suspend the belief for the life of the trial.

The problem with challenging the belief (“taming the stallion”) is it will not work. In the words of the great Washington State trial lawyer, Paul Luvera: “You can challenge people on their bias, their life experience, and their values, but it is a waste of time.” Meaning it never works to try to argue against the bias.

The problem with simply agreeing with the belief (“ride the wild pony”) is we know most lawsuits are not frivolous. When we agree cases such as the McDonalds case are frivolous we are disingenuous. This we can never be with the jury.

This leads us to what Howard Nations terms:

The Spielberg Method. During jury selection if we are faced with a juror or a group of jurors who are tort reform/frivolous lawsuit believers (and assuming challenges for cause and peremptory challenges are unavailable) we can use The Spielberg Method as follows:

1) We acknowledge the frivolous lawsuit tort reform bias. Not only do we acknowledge it we help justify it. “Mr. Jones I understand you are saying our legal system must ferret out bad lawsuits. You believe our legal system has no room for a frivolous lawsuit.”

2) We then link ourself and our client with the bias. “Mr. Jones Brad Barnes and I agree with you. A frivolous lawsuit clogs up the court and delays recovery for a legitimately injured person.”

3) We then agree with the juror or jurors to suspend the bias during the life of our trial.”Mr. Jones do you agree there are proper lawsuits with legitimately injured people?” “Can you agree if we demonstrate Brad Barnes has a proper lawsuit with a legitimate injury to provide justice as a juror in the form of fair compensation?”

Prove Legitimate Case. As with all cases, to succeed in The Spielberg method we must demonstrate a legitimate personal injury case from opening statement through closing argument. This means we show our client is a straightforward honest person. No overstatement, no gilding. We prove damages to a decent person who is legitimately injured. This is done in a simple common sense way so the picture is clear with no confusion.

Closing and Frame of Reference. As part of the closing argument come back to the mutual promises. For us we promised to demonstrate a proper lawsuit and a legitimately injured person. Remind the jury there cannot be a frivolous lawsuit without a frame of reference. This means only when we have a proper lawsuit do we have a frame of reference from which to recognize a bad lawsuit. Remind the jury they agreed to provide justice in the form of reasonable compensation for a proper lawsuit. Well they now have a proper lawsuit and they now have the job to recognize it and distinguish it from a bad lawsuit by providing fair compensation.

The bias has been suspended during the trial. The bias is still there and in fact reinforced as the juror or jurors now have recognized there is a frame of reference from which to distinguish the bad from the good. Fortunately for them they have been part of the good through what Howard Nations teaches is The Spielberg Method.

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